LEWIS DORNAL FOUST, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6865
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A7) is not
published, but the decision is noted at 878 F.2d 1432 (Table).
JURISDICTION
The judgment of the court of appeals was entered June 22, 1989.
The petition for a writ of certiorari was filed March 5, 1990 and is
therefore substantially out-of-time under Rule 13.1 of the Rules of
this Court. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the government's explanation for its peremptory strikes of
two black prospective jurors was adequate under Batson v. Kentucky,
476 U.S. 79 (1986).
STATEMENT
Following a jury trial in the United States District Court for the
Northern District of Texas, petitioner was convicted on one count of
possession with intent to distribute cocaine, in violation of 21
U.S.C. 841(a)(1), and on one count of use of a communication facility
to facilitate the distribution of cocaine, in violation of 21 U.S.C.
843(b). He was sentenced to concurrent terms of seven years'
imprisonment on the first count and four years' imprisonment on the
second count. The court of appeals affirmed.
1. On October 27, 1987, an officer working with the Federal
Narcotics Task Force at the Los Angeles International Airport observed
two men fitting the drug courier profile walking through the terminal.
The officer stopped the men and obtained their consent to a search of
their persons and automobikle. During the search, the officer
recovered a United States Express Mail receipt indicting that one of
the men had shipped a package to petitioner at petitioner's Fort Worth
address. Pet. App. A2; Gov't C.A. Br. 4.
The officer then telephoned Postal Inspector Wayne Meyhers, who
went to the post office in Fort Worth, intercepted the Express Mail
package addressed to petitioner, and arranged for the package to be
sniffed by a Drug Enforcement Administration narcotics detection dog.
After the dog alerted officers to the presence of a controlled
substance in the package, Meyers obtained a warrant to search the
package. When Meyers and Drug Enforcement Administration agents
opened the package, they found a white crystalline substance that
tested positive for cocaine. The officers replaced most of the
cocaine with lactose and resealed the package. Pet. App. A2-A3;
Gov't C.A. Br. 4-5.
Meyers, disguised as a letter carrier, delivered the package to
petitioner at his apartment. The agents then obtained a second search
warrant, this time for petitioner's apartment. Upon executing the
warrant, the officers found approximately five ounces of cocaine, a
quantity of marijuana, and assorted drug paraphernalia. Pet. App. A3;
Gov't C.A. Br. 5-7.
2. Petitioner is black. During jury selection at petitioner's
trial, the prosecutor used two of his six peremptory challenges to
strike black prospective jurors, and petitioner used one peremptory
challenge to strike a black prospective juror. No blacks served on
the jury that ultimately convicted petitioner. 3/4/88 Tr. 78-79,
90-91. After the prosecutor and defense attorney exercised their
peremptory challenges, the jury was seated and sworn, and the
remaining members of the jury panel were dismissed. 3/4/88 Tr. 79-80.
The district court proceeded to give its preliminary instructions to
the jury. 3/4/88 Tr. 80-88. Following these instructions, the
indictment was read, and petitioner entered a plea of not guilty.
3/4/88 Tr. 88-89. The court then excused the jury until the following
day. 3/4/88 Tr. 90.
After the jury had departed, petitioner's counsel objected to the
government's use of its peremptory challenges to strike two black
prospective jurors. In response, the district court directed the
prosecutor to state his reasons for exercising each of these
peremptory strikes. Pet. App. A5; 3/4/88 Tr. 90-91. The prosecutor
indicated that one of the prospective jurors, Anthony Jenkins, was
struck because "he appeared to be a young man the same age or younger
than (petitioner)," because he failed to make eye contact with the
prosecutor during voir dire, and because his dress and appearance
suggested that he might have associations with drug users. Pet. App.
A5-A6; 3/4/88 Tr. 91-93. The other prospective juror, Laurene Hill,
was struck because the prosecutor was unable to determine the exact
nature of her occupation and source of income. /1/ The prosecutor
also stated that he "couldn't see (Hill) at all" during voir dire and
therefore had no opportunity to make eye contact with her. Pet. App.
A5; 3/4/88 Tr. 92-94. Finally, the prosecutor argued that
petitioner's Batson challenge was untimely because it was made after
the jury had been impaneled and sworn. 3/4/88 Tr. 95.
After hearing the government's explanations for the peremptory
strikes, the district court noted that the Batson objection "should
have been made prior to the swearing of the jury." The court then
ruled that "(a)s the record stands at this point," petitioner's
challenge to the jury would be denied. 3/4/88 Tr. 95.
3. The court of appeals affirmed. Pet. App. A1-A7. The court
first noted that petitioner's Batson objection was untimely under the
rule announced in prior Fifth Circuit decisions, which require that
such objections be made "before the venire is dismissed and before the
trial commences." Pet. App. A5 n.3. Because the district court had
requested the government's reasons for the peremptory strikes,
however, the court of appeals proceeded to reach the merits of the
Batson challenge. Id.
In reviewing the district court's "implicit" determination that the
challenged peremptory strikes were not motivated by racial
discrimination, the court applied a standard of great deference, and
it concluded that the district court's finding was not clearly
erroneous. Pet. App. A5-A6.
ARGUMENT
Petitioner renews his contention (Pet. 7-16) that the government's
use of its peremptory challenges violated Batson v. Kentucky, 476 U.S.
79 (1986). This factbound claim, which was not raised in a timely
manner at trial, does not warrant this Court's review.
As an initial matter, both the district court and the court of
appeals correctly concluded that petitioner's failure to raise his
Batson objection until after the jury had been sworn and the other
members of the panel dismissed rendered the objection untimely. See
United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir. 1989) ("to
be timely, the Batson objection must be made before the venire is
dismissed and before the trial commences"); Government of the Virgin
Islands v. Forte, 806 F.2d 73, 76 (3d Cir. 1986) (defendant waived
Batson claim by failing to make any objection at close of voir dire);
cf. Batson, 476 U.S. at 100 (motion made before jury was sworn was
timely).
The requirement that a Batson objection be made before the jury
panel is dismissed promotes judicial economy by "allow(ing) the trial
court and the prosecutor to reconsider and perhaps change their course
of conduct while still possible," thereby "avoid(ing) unnecessary
reversals because of errors that could have been averted at trial."
Government of the Virgin Islands v. Forte, 806 F.2d at 75-76; see
United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir. 1987) (Batson
violation "is earily remedied prior to commencement of trial simply by
seating the wrongfully struck venireperson"). By failing to object to
the government's exercise of its peremptory challenges until after
jury selection had been completed and the trial had begun, petitioner
waived his Batson claim. See Government of the Virgin Islands v.
Forte, 806 F.2d at 76; United States v. Erwin, 793 F.2d 656, 667 (5th
Cir.), cert. denied, 479 U.S. 991 (1986).
In any event, petitioner's claim lacks merit. Petitioner's
challenge to the adequacy of the government's reasons presumes that
the court of appeals should assess the credibility and cogency of the
government's explanations, rather than simply determine that they are
race-neutral and related to the particular case to be tried. As to
credibility, the court of appeals is not well-situated to second-guess
the trial court's judgment; for that reason, the courts of appeals
have uniformly applied a deferential standard of review in Batson
cases that involve the evaluation of inferences from particular
records. See, e.g., United States v. Power, 881 F.2d 733, 739 (9th
Cir. 1989); United States v. Moreno, 878 F.2d 817, 820 (5th Cir.),
cert. denied, 110 S. Ct. 508 (1989); United States v. Battle, 859
F.2d 56, 58 (8th Cir. 1988); United States v. Biaggi, 853 F.2d 89, 96
(2d Cir. 1988), cert. denied, 109 S. Ct. 1312 (1989); United States
v. Clemons, 843 F.2d 741, 746-747 (3d Cir.), cert. denied, 109 S. Ct.
97 (1988).
As to cogency, a reviewing court is not to determine whether the
prosecutor had good reasons for his strikes, only whether he acted for
race-neutral reasons that have some plausible relation to the trial at
hand. See Batson, 476 U.S. at 97 ("we emphasize that the prosecutor's
explanation need not rise to the level justifying exercise of a
challenge for cause"). In this case, the prosecutor carefully
explained his reasons for striking the black potential jurors. 3/4/88
Tr. 91-94. The government's strike against a young juror who came to
court in a "pink colored shirt" and who fit the description of persons
associated with the drug community was perfectly proper in this
cocaine-related case. See United States v. Clemons, 843 F.2d 741,
748-749 (3d Cir.) (prosecutor's striking of "young, single panel
members" was "logical in the context of a narcotics prosecution"),
cert. denied, 109 S. Ct. 97 (1988). And, although petitioner
questions (Pet. 13) the legitimacy of the government's removal of a
potential juror who failed to make eye contact with the prosecutor,
and whose work situation was somewhat obscure, a prosecutor's rapport
with a particular juror and his opinion about the juror's profession
are typical grist for peremptory strikes. See United States v.
Forbes, 816 F.2d 1006, 1010-1011 (5th Cir. 1987) (prosecutor's
intuitive sense from juror's posture and demeanor that she was hostile
to being in court satisfied his obligation to provide race-neutral
reason for the peremptory challenge. Petitioner fails to identify any
factors in this record that undermine the determinations of both
courts below that racial considerations did not motivate the
prosecutor's actions.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
NINA GOODMAN
Attorney
APRIL 1990
/1/ The prosecutor noted that his decision to strike a white
prospective juror who had indicated that he was an unemployed
"investor" was made for a similar reason. Pet. App. A5; Tr. 92.